Constitutional Topic: Military Justice

The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Military Justice. Military justice is not
mentioned specifically in the Constitution, but can be found in Article 1, Section 8 (power to define penalties
for piracy and felonies on the high seas and for violations of the law of
nations, power to declare war, power to raise armies and navies) and in Article 2, Section 2 (president is commander in
chief of the military). The Topic Page for Martial Law may also be of interest.

Sources for this topic are the UCMJ itself
(also found at 10 USC 801), as well as ex parte Quirin (317 US 1 [1942])
and the Government Printing Office's commentaries on Article
1 of the Constitution. Sources for contemporary topics include the web
sites for CNN and The New York Times.

In November, 2001, President George W. Bush issued an executive order
allowing persons involved with terrorism, whether captured in the United States
or abroad, to be tried by military commissions. The order was met with some
criticism because of fears of the possibility that citizens, or others, could
have their civil rights violated in a court with lower standards of evidence
than a civil court, and with the possibility of an unappealable death sentence.
Others countered that terrorists placed themselves outside of civil society,
and the rules thereof, of their own volition, and did not deserve the
protections of the Constitution.

The entire issue piqued the interest of many in the entire subject of
military justice. What are the differences between civil and military justice,
and how do foreign nationals and enemies fall into these systems?

Military justice is a separate entity from civilian justice. Members of the
military can be tried in a court-martial (military court) under the rules of
the Uniform Code of Military Justice (UCMJ). The UCMJ defines crimes that are
the same as those in civilian courts, such as murder, rape, and robbery. But it
also includes violations of order and discipline, such as disobedience to a
superior officer, drunkenness on duty, misconduct as a prisoner of war, even
adultery.

The UCMJ was first established in 1950, and underwent a major revision in
1968. Military law did not suddenly spring into existence in 1950, but the UCMJ
was the first attempt to turn the existing law into a comprehensive code. The
system of courts-martial do not exempt a service member from trial by the civil
authority - but the courts-martial can be, and often are, used in place of
civil courts for all offenses committed by a service member, even if the act is
committed off-base and while off-duty.

The first question to answer is, who is subject to the UCMJ? The most
obvious answer is members of the armed forces, the Army, Navy, Air Force,
Marines, and Coast Guard. According to the UCMJ, members of the military
reserves are subject while in active service, as are National Guard members
while in federal service. Also covered are veterans cared for in military
hospitals, civilians accompanying the military during exercises, and members of
other federal services (such as NOAA and the Public Health Service) when
attached to the military, as well as prisoners of war in U.S. custody.

The next question is, how is one prosecuted under the UCMJ? Normally,
offenses are handled in one of two ways. At the discretion of a commanding
officer, some offenses may be handled summarily. Sentences in such
non-judicial punishments might include confinement to base or loss or detention
of pay. Officers are afforded leniency in summary punishment, whereas enlisted
personnel may be subject to punishments such as confinement and bread and water
rations for up to three days. If the officer imposing the punishment is of a
high enough grade, punishments such as loss of rank may also be imposed.

If the commanding officer does not or cannot impose punishment, the accused
may be tried in a court-martial. General courts-martial must consist of a
judge and five or more other members (or just the judge if the accused so
requests). Special courts-martial can consist of a judge and no less than
three other members (or just the judge). A summary court-martial can be
convened in some circumstances, where only one commissioned officer acts as
judge.

Each armed force has its own judicial system, and unless under circumstances
prescribed by the President, members of one service are not prosecuted under
the courts-martial of another. For non-service personnel, the accused is held
under the court of the service that has the person in custody. General
courts-martial can try a service member for any crime described in the UCMJ,
including capital crimes (those for which the death penalty can apply). A
general court-martial cannot try a non-service member for a capital crime.
Special and summary courts-martial have more limited jurisdictions.

The members of a court-martial can be any commissioned officer, a warrant
officer (unless the accused is a commissioned officer), and any enlisted
personnel (for the trial of another enlisted member). The judge in a general
or special court-martial is to be a commissioned officer who is a member of the
federal bar, or any state bar (if qualified by the Judge Advocate General).

Many rights of the accused familiar in civilian courts are present in
military court, but to a much more limited degree. The right against
self-incrimination exists, for example, the accused must be informed of the
crime, and double jeopardy is prohibited. The Court of Military Appeals has
held that all rights afforded civilians are afforded service members, unless
the UCMJ expressly overrides a right. As for the votes of the court-martial,
the death penalty must be found by a unanimous vote. Other offenses are by a
two-thirds vote. Sentences of ten years confinement or more must be agreed by
three-fourths of the court.

Civilian courts have no jurisdiction to review military cases, with the sole
exception of the Supreme Court, which, in 1984, was given appellate
jurisdiction over the Court of Military Appeals. The only remaining exception
to this exclusive jurisdiction is the habeas corpus process, in which a
civilian court can compel the military to show cause to hold a prisoner.

Each service has a Judge Advocate General or JAG. The Judge Advocate
General has a staff of judge advocates, who perform the roles of defense
attorney and prosecutor. The term "judge" is historical and does not indicate
the person acts as a judge in the sense that they preside over a case.

President Bush's executive order of November, 2001, had nothing directly to
do with the UCMJ or courts-martial. The order allowed the creation of another
form of military court, called the military commission. According to the
2001 Law of War Workshop Deskbook (The Judge Advocate General's School,
U.S. Army, Charlottesville, Virginia), they have concurrent jurisdiction with
general courts-martial, and are often used to prosecute war crimes. According
to the Deskbook, "In theory, [commissions] could provide very limited
evidentiary and procedural formality ... and a very streamlined appeal
process."

In ex parte Quirin (317 US 1 [1942]), the U.S. Supreme Court upheld
the use of military commissions for the trial of German agents landed in the
United States by U-boat, and who infiltrated inside the country as spies. The
Court denied the accused's request of a writ of habeas corpus, finding that the
President had been granted the ability to convene the commission by Congress,
and that the alleged offenses fell under the law of nations as war crimes
(espionage and conspiracy to commit acts of sabotage and terror). One of the
agents contended to be a U.S. citizen by way of naturalization of his parents.
The Court did not take up the issue of his citizenship, since a citizen who
adheres to the enemy and then returns to the U.S. as an agent is acting in
violation of the law of war, regardless of his citizenship.

The Court found that the Congress has the power to allow the President to
convene a military commission, and that the President then had the power to
actually convene a commission. A lawful combatant had to be captured and
treated as a prisoner of war according to international convention. An
unlawful combatant, such as a spy or a soldier operating without identifying
marks, could be tried by a military commission. The practice used during the
Second World War had also been used during the Civil War and during the Mexican
War.

The question that remains for us, then, is this: is a terrorist, who is not
a member of an organized national armed force, an unlawful belligerent in the
context of the law? It would seem that taking up arms against a nation and its
people is an act of war, whether that war is declared or not. By international
convention, war is waged in a certain way, by uniformed soldiers. This is the
way of "civilized warfare." Warlike actions taken by non-uniformed soldiers
are taken by unlawful belligerent. It can then be argued that an entire
network of terrorists, like the al Qaeda network of Osama bin Laden, is an
entire network of unlawful belligerents. Based on ex parte Quirin,
these people are subject to military commission.

This appears to answer the question of "can it happen," in the legal sense.
The question remains, should it be? This is a question that will be answered
as these commissions are convened, and we see who is tried under them, what
their sentences are, and the kind of access the public has to the
proceedings.

As of this writing in July, 2002, we have four real cases to look at for a
view of how military justice will fit into our war on terror. The cases of the
al Qaeda detainees, of John Walker Lindh, of Yaser Hamdi, and of Jose
Padilla.

During the campaign in Afghanistan, hundreds of people involved with al
Qaeda and the Taliban were captured. Over time, then people were mostly all
moved to the U.S. base in Cuba, Guantanamo. Among the group were nationals
from several allied nations, including Australia and England, all of whom
continue to be held by the U.S. One of the biggest concerns of U.S.
authorities was how to charge the detainees. Because most of them refuse to
cooperate or answer questions, there has been little opportunity to gather
evidence that they have committed criminal acts. The administration had
indicated that both military and civilian courts would likely be used to try
them, and some would even be sent to their home countries for trial.

Lindh, the so-called "American Taliban," was captured in Afghanistan, and
after some hand-wringing, it was decided that he should be brought back to the
United States to face justice. There was some question about whether he should
be detained at Guantanamo, and tried via military tribunal, but the final
decision was made to try him in criminal court and he was moved to a site in
Virginia. Before most of the issues surrounding his case could be brought to a
judge and resolved, Lindh accepted a plea bargain where all of the terrorism
charges were dropped. In the plea, Lindh plead guilty to serving in the Taliban
army and in carrying weapons while doing so, both in violation of US law.

A second American citizen captured in Afghanistan, Yaser Esam Hamdi, is
currently in a legal limbo between the military court, where he being held as an
enemy combatant, and the civil courts, where his lawyers argue his case. Hamdi
was captured in Afghanistan and held in Cuba until it was discovered that he was
born in Louisiana. Hamdi was moved to Virginia and is currently still being
held on U.S. soil. To evidence the limbo Hamdi is in, a federal appeals court
ruled that he did not have a right to an attorney. Another federal judge,
however, ordered the government to specify why he is being held - the government
challenged the judge's authority to make the order, saying that the courts
cannot second-guess the military's determination that someone is an enemy
combatant. The implication, say government critics, is that all that is needed
to violate anyone's rights is to have them declared an enemy combatant. In
January 2003, the 4th U.S. Circuit Court of Appeals agreed with the government,
stating, "Judicial review does not disappear during wartime but the review of
battlefield captures in overseas conflicts is a highly deferential one."

Hamdi's case continued to bounce between the Federal District Court and the
4th Circuit Court of Appeals through 2003. In August, the District Court judge
demanded for a third time that the government produce charges against Hamdi, and
again the government appealed the ruling. In December, after two years in
custody, the Pentagon finally allowed Hamdi to have access to a lawyer, though
the Pentagon was careful to state that it was not creating a precedent with the
meeting, and that the meetings would be monitored. The Pentagon said that Hamdi
could no longer provide useful intelligence. The Supreme Court heard
Hamdi's case in April 2004 and ruled on it in June 2004. In the ruling the
Court said that Hamdi could be held in custody by the government, but that he
must be given a hearing at which he can dispute charges against him.

On September 27, 2004, the government announced that it had reached an
agreement with Hamdi. Under the agreement, the government would release Hamdi
from custody and would drop all charges against him. The government would
return Hamdi to Saudi Arabia. In return, Hamdi would give up his U.S.
citizenship, renounce terrorism, and not travel to the U.S. for ten years.
Additionally, he would agree to forego any suit against the United States in
relation to his detainment. Hamdi was released from U.S. custody on October
10, 2004.

The most recent arrestee to enter the fray, Padilla (a.k.a. Abdullah al
Muhajir), is another unique case. He was captured not overseas, but in Chicago
as he deplaned. U.S. authorities contend that Padilla is an al Qaeda operative,
and was sent back to the United States to plan the detonation of a so-called
"dirty nuke," a conventional bomb used to spread radioactive materials over a
wide area. Padilla was taken into civilian custody, and held there for several
weeks before the decision was made to consider him an enemy combatant, and he
was placed into military custody. There is some question of whether Padilla
will ever be charged with a crime, with some officials indicating he may be
more useful for the information that he can give than for having him jailed.
The Bush Administration has indicated its feeling that only the Executive
Branch can decide if someone qualifies as an "enemy combatant," signaling that
it will resist any judicial review.

On March 11, 2003, a federal judge ruled that Padilla must have access to
his attorneys, over the objections of the Administration, saying that the only
way Padilla can defend himself is by presenting evidence, and the only way for
him to present evidence is through counsel. On November 17, 2003, the case,
appealed by the government, was heard in a federal appeals court, where the
judges seemed skeptical about the executive's ability to classify a citizen as
an enemy combatant and thus be held incommunicado indefinitely. On December 18,
2003, the appeals court ruled against the administration. The court gave the
administration 30 days to release Padilla from military custody. After an
appeal, the Supreme Court agreed to hear the case in April 2004; it ruled on
Padilla's case in June 2004, but the Court did not rule on the most salient
points in the case. Instead, it dodged the question on a technicality, saying
that Padilla's case had been heard in the wrong court, and that further
proceedings in the right court were necessary.

In September 2005, the 4th U.S. Circuit Court of Appeals ruled that
President Bush did have the authority to hold Padilla without charges. The
decision was blasted by civil liberties groups as a blank check, allowing the
executive to hold any citizen indefinitely without charge for any reason, but
others argued that the power would sustain only as long as the Congressional
authorization for the President to conduct the ill-defined "war on terror." The
executive branch eventually made the point moot - in November 2005, Padilla was
finally charged with a crime. He was indicted with conspiracy to "murder,
kidnap, and maim people overseas." Some noted that any charges concerning his
initial arrest were conspicuously absent in the indictment.

In April 2006, Padilla's case came before the Supreme Court. The Court, in a
6-3 ruling, declared that the issue at hand, whether Padilla could be
designated an enemy combatant, was moot because of the change in charges in
November. Padilla was held for three and a half years without charges - the
Court essentially said that that time was not relevant because the charge he
had been held under had been dropped. Trial under the criminal charges
introduced by the government proceeded and on January 22, 2008, Padilla was
sentenced to 17 years in prison for his role in support of terrorism. The
judge took into account the time Padilla served for the dirty bomb case, and
sentenced him to a shorter term than was possible.

In June 2006, the Supreme Court ruled on a case brought by Salim Ahmed
Hamdan, a former driver for Osama bin Laden captured in Afghanistan and held in
prison at Guantanamo Bay, Cuba. Hamdan faced a military commission for the
charge of conspiracy to commit terrorism. Hamdan's military lawyer appealed
the very hearing itself to the Supreme Court. The Supreme Court said that
Hamdan must by tried in a normally-constituted court martial as directed by the
UCMJ and by the Geneva convention. The Court said that the President did not
have the power to create the military commissions absent specific authorization
to do so from Congress. Among the issues cited by the Court was a provision in
the commission's rules that allowed the presiding judge to deny access to any
evidence used against the accused and the fact that this provision had already
been invoked in the Hamdan proceedings.